Full Press Release Details
BIOSCIENCES CORPORATION
TO COMMON STOCK ISSUANCE AGREEMENT
First Amendment to Common Stock Issuance Agreement (this "Amendment") is made as of June 27,
2017, by and among AmpliPhi Biosciences Corporation, a Washington corporation (the "Company"), and the
persons and entities listed on Exhibit A hereto (each, a "Holder"
and collectively, the "Holders"). All capitalized terms used in this Amendment but not defined herein
shall have their respective meanings as set forth in the Agreement.
the Company and the Holders entered into a Common Stock Issuance Agreement dated as of April 8, 2016 (the "Agreement");
on June 3, 2016, the Company consummated a registered offering of shares of its Common Stock, in connection with which the Company
issued additional shares of its Common Stock ("Common Stock")
to the Holders pursuant to Section 3 of the Agreement;
on each of November 22, 2016 and May 10, 2017, the Company completed an underwritten public offering (each, a "Public
Offering") of shares of Common Stock, each of which may be deemed a Diluting Issuance under the Agreement and therefore,
pursuant to Section 3 thereof, the Company may be required to issue additional shares of Common Stock to the Holders (the "Price
Protection Obligations");
under the rules of the NYSE MKT, the maximum number of shares of Common Stock the
Company can issue to the Holders as a result of the Public Offerings is 28,684 shares (after giving effect to the Company's
1-for-10 reverse split of its outstanding Common Stock, effected on April 24, 2017 (the "Reverse Split"))
without additional shareholder approval; and
the Company and the undersigned Holders desire to amend the Agreement to provide for obligations
by the Company with respect to the issuance of additional shares of Common Stock in up to two closings, which obligations will
be deemed full satisfaction of any and all Price Protection Obligations under the Agreement.
consideration of the foregoing premises and for other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Company and the Holders, severally and not jointly, hereby agree as follows:
Issuance of Common Stock.
Initial Closing. Within five business days of the date hereof, the Company will
instruct its transfer agent to deliver to each Holder the number of shares of Common
Stock set forth opposite such Holder's name on Exhibit A hereto (the
"Initial Closing Shares" and such issuance, the "Initial Closing" and the date
of such issuance, the "Initial Closing Date") either through electronic book entry credit or the issuance
of a physical stock certificate as specified for such Holder pursuant to the Delivery Instructions set forth on such Holder's
signature page to the Agreement.
Additional Closing. Contingent and effective upon the receipt by the Company of
the Requisite Shareholder Approval (as defined below) and, with respect to each Holder if the Requisite Shareholder Approval is
received, the execution and delivery by such Holder of an Additional Release (as defined below), the Company will instruct its
transfer agent within five business days after the Company's receipt from such Holder of a duly executed Additional Release,
to transfer to such Holder the number of shares of Common Stock set forth opposite such Holder's name on Exhibit
B hereto (the "Additional Closing Shares" and together with the Initial Closing Shares, the
"Shares" and such issuance, the "Additional Closing" and the date of such issuance,
the "Additional Closing Date") either through electronic book entry credit or the issuance of a physical
stock certificate as specified for such Holder pursuant to the Delivery Instructions set forth on such Holder's signature
page to the Agreement. For clarity, the issuance of Additional Closing Shares pursuant to this Section 1(b) shall not occur unless
the Requisite Shareholder Approval is obtained at the Company's 2017 Annual Meeting
of Shareholders and, with respect to each Holder, unless such Holder executes and
delivers to the Company an Additional Release by the earlier of (i) the 15th business day following the Company's
disclosure on a Form 8-K filed with the Securities and Exchange Commission ("SEC") of the voting
results of the 2017 Annual Meeting of Shareholders and (ii) the 15th business day following a written request from the
Company to the Holder, following the 2017 Annual Meeting of Shareholders, to execute and deliver an Additional Release to the Company
(as applicable, the "Deadline Date").
Shareholder Approval.
The Company agrees to use its commercially reasonable efforts to obtain the requisite approval of the Company's shareholders
at the Company's 2017 Annual Meeting of Shareholders of the Company's issuance to the Holders of the Additional Closing
Shares pursuant to this Amendment (the "Requisite Shareholder
Approval"), and such commercially reasonable efforts will include (i) a recommendation by the Company's
board of directors that the Company's shareholders approve such proposal and (ii) the Company's retention of a third-party
proxy solicitation firm, on commercially reasonable and market terms, to assist the Company in obtaining approval of the Company's
shareholders of such proposal, the related costs and expenses for which shall be borne by the Company.
Release of Claims by Holders. In exchange for the covenants and commitments made by the Company under this Amendment,
and except as otherwise provided in this Amendment, each of the Holders on behalf of itself and its heirs, successors, assigns,
predecessors, corporate parents, corporate subsidiaries, partners, limited partners, and all of those entities' current and
former officers, directors, managing agents, partners, limited partners, members, shareholders, successors, assigns, employees,
agents and attorneys (collectively, the "Releasing Parties") hereby generally and completely releases
the Company and its current and former directors, officers, employees, shareholders, members, partners, agents, attorneys, predecessors,
successors, parent and subsidiary entities, insurers, affiliates, investors and assigns of and from any and all claims, expenses,
debts, demands, costs, liabilities, obligations, actions or causes of action, in each case both known and unknown, arising out
of (directly or indirectly) or are in any way related to the Agreement, this Amendment, and any events, acts, conduct, or omissions
occurring prior to or on the date the Holder signs this Amendment (collectively, the "Released Claims").
The Released Claims include, but are not limited to: (i) all claims of any kind (whether based in law, contract, equity or
otherwise), including tort claims; (ii) all claims for breach of contract (oral or written), lost profits or other economic
claims under any theory of law, equity or contract; and (iii) any claim for breach of any implied covenant of good faith and
fair dealing. Notwithstanding the foregoing and for the avoidance of any doubt, this release of claims does not apply to any breach
Additional Release of Claims by Holders. Each Holder's eligibility to receive the Additional Closing Shares set
forth opposite such Holder's name on Exhibit B hereto is contingent
upon such Holder executing a complete release of claims against the Company, the form of which is attached hereto as Exhibit
C (the "Additional Release").
Waiver of Unknown Claims. EACH HOLDER HEREBY CONFIRMS, ON BEHALF OF ITSELF AND ITS RELEASING PARTIES, THAT except
as otherwise provided in this AMENDMENT, THIS AMENDMENT INCLUDES A RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS. In releasing
claims unknown to the Holders at the time of execution, each Holder (on behalf of itself and its Releasing Parties) is waiving
all rights and benefits under the following provision of Section 1542 of the California Civil Code, and any law or legal principle
of similar effect in any domestic or international jurisdiction: "A general release does not extend to claims which the
creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her
must have materially affected his or her settlement with the debtor."
Termination of Obligations.
The Company and each of the Holders agree that (i) the obligations of the Company set forth in Section 3 of the Agreement shall
be terminated and be of no further force or effect immediately upon the execution of this Amendment, and (ii) the obligations of
the Company set forth in Section 1(b) and Section 2 of this Amendment shall be terminated and be of no further force or effect
(without effecting the effectiveness of the Released Claims) upon the first to occur of (A) the consummation of the Additional
Closing, (B) if the Requisite Shareholder Approval is not obtained at that Company's 2017 Annual Meeting of Shareholders,
upon the Company's determination following such meeting that the Requisite Shareholder Approval was not obtained, (C) with
respect to each Holder if the Requisite Shareholder Approval is obtained at the 2017 Annual Meeting of Shareholders, such Holder's
failure to execute and deliver to the Company an Additional Release on or before the Deadline Date, and (D) the consummation of
an Acquisition or Asset Transfer prior to the obtainment of the Requisite Shareholder Approval. "Acquisition"
means any consolidation or merger of the Company with or into any other corporation or other entity or person, or any other corporate
reorganization, other than any such consolidation, merger or reorganization in which the shares of capital stock of the Company
immediately prior to such consolidation, merger or reorganization, continue to represent a majority of the voting power of the
surviving entity (or, if the surviving entity is a wholly owned subsidiary, its parent) immediately after such consolidation, merger
or reorganization; and "Asset Transfer" means a sale, lease, exclusive license or other disposition of
all or substantially all of the assets of the Company.
All book entry credits or certificates representing the Shares shall have endorsed thereon legends in substantially
the following form (and a stop-transfer order may be placed against transfer of the certificates